[1] Where a trustee concludes a real estate sales contract with a bona fide owner as a contracting party and completes the registration of ownership transfer under the name of a trustee pursuant to a title trust agreement entered into with a truster, whether the trustee constitutes “a person who keeps another’s property,” as stipulated under Article 355(1) of the

[2] The method of determining the parties to a contract and the method of determining the parties to a contract where the party to the contract has entered into a contract under the name of another party and had another person purchase the real estate

[3] In a case where a title truster purchased real estate upon the solicitation of a title trustee and completed the registration of ownership transfer under the name of a trustee, the case holding that the court below erred in the misapprehension of legal principles and incomplete deliberation in holding that the act of consuming the purchase price received by the trustee, considering the truster as the actual purchaser, constitutes embezzlement, even though the title truster should be deemed to be a so-called "contract title trust relationship" where the trustee becomes a contracting party

[4] Whether a crime of false accusation can be established solely with the passive proof that the truth of the reported fact cannot be recognized (negative), and whether a crime of false accusation is established where some of the reported facts contain contents contrary to objective truth, but it merely exaggerations the circumstances of the reported fact (negative)

[5] The case holding that the court below erred in the misapprehension of the rules of evidence and the judgment below which found the crime of false accusation by finding the above accusation as false facts without taking such measures, in case where it acknowledged the fact that the complainant suffered injury from the defendant's injury, and the complainant was receiving hospitalized treatment after receiving a diagnosis on the ductal dunes at the hospital, on the ground that the investigation agency's fact finding that the above "the hospital had received hospitalized treatment on the ground that there was an opinion on the ductal ductals in the ductal part of the ductal part of the ductal part of the ductal part of the ductal part of the ductal part of the ductal part of the hospital" was erroneous in the misapprehension of the rules of evidence

[1] Article 35(1) of the Criminal Act, Article 2 subparag. 1 and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Articles 105 and 186 of the Civil Act / [3] Article 35(1) of the Criminal Act, Article 2 subparag. 1 and 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Articles 105 and 186 of the Civil Act / [4] Article 156 of the Criminal Act / [5] Article 156 of the Criminal Act

[1] Supreme Court Decision 98Do4347 delivered on March 24, 200 (Gong2000Sang, 1101) Supreme Court Decision 2005Do973 Delivered on September 8, 2006 / [2] Supreme Court Decision 97Da22089 Delivered on March 13, 1998 (Gong198Sang, 101), Supreme Court Decision 2001Da32120 Delivered on September 5, 200 (Gong203Ha, 1998), Supreme Court Decision 2003Da44059 Delivered on December 12, 203 (Gong2004, 125) (Gong20984, 20989) decided on September 7, 2007, Supreme Court Decision 2005Do48184, Apr. 16, 2019)

Defendant

Defendant

Attorney O Young-young

Daejeon District Court Decision 2008No308 Decided July 25, 2008

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. On the first and second grounds for appeal

A. The crime of embezzlement is established when a person who keeps another’s property embezzled such property. Thus, the property subject to embezzlement should be owned by another person. However, according to Articles 2 subparag. 1 and 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, where a truster and a trustee concluded a title trust agreement with the owner who was unaware of the fact that a title trust agreement was concluded, and subsequently completed the registration of ownership transfer of the pertinent real estate in the name of the trustee based on the said sales agreement, the change in the real right to the relevant real estate by the registration of ownership transfer is valid, but the title trust agreement between the truster and the trustee is null and void. Thus, the trustee shall be deemed to have acquired the ownership of the relevant real estate in the relationship between the truster and the trustee as well as the former owner, and therefore, the trustee shall not be deemed a person who keeps another’s property (see, e.g., Supreme Court Decisions 98Do4347, Mar. 24, 200; 205Do9733, Sept. 8, 2006).

B. In full view of the facts stated in its reasoning, the lower court found the Defendant guilty of the charge that: (a) the instant land was purchased by Nonindicted Party 1 and was trusted with the name of the Defendant; (b) on the other hand, at the time of the purchase of the instant land, the Defendant concluded a contract with the purchaser; (c) the instant land was purchased by the Defendant or at least the real estate trusted with a contractual title trust relationship; and (d) on March 15, 2006, the Defendant was guilty of the charge that: (a) around March 15, 2006, the sum of KRW 9.9 million was transferred from Nonindicted Party 2 to the Defendant Agricultural Cooperative account; and (b)

C. Examining the evidence adopted by the court below in light of the records, we affirm that the land of this case was a real estate for which the ownership transfer registration has been made to the defendant under a title trust agreement between Nonindicted 1 and the defendant, and there is no violation of the rules of evidence against the rules of evidence.

However, the lower court’s rejection of the Defendant’s assertion that the above title trust constitutes a contract title trust is difficult to accept for the following reasons.

In cases where an actor who enters into a contract performs a juristic act in another person’s name, as to whom the actor or the title holder is deemed a contracting party, the intent of the actor or the title holder shall be determined as the parties to the contract as to whom the actor or the title holder is the same. In cases where the intent of the other party does not coincide with that of the actor, the other party shall be determined as to whom the actor or the title holder would have understood as a contracting party based on the various circumstances before and after the conclusion of the contract, including the nature, content, purpose, and circumstances of the contract, etc. (see, e.g., Supreme Court Decisions 97Da22089, Mar. 13, 1998; 2003Da44059, Dec. 12, 2003; 2003Da40584, Sept. 27, 2005). Thus, if the purchaser intended to purchase real estate under another person’s name, the other party should be externally a contracting party, barring special circumstances.

According to the first instance court and the court below's evidence duly adopted and completed the investigation, Non-Indicted 1, the title truster, decided to purchase six parcels of real estate including the instant land at the Defendant's recommendation, but did not obtain the qualification certificate for acquisition of farmland, so the name of the purchaser was prepared to be "non-Indicted 3 and two persons" and thus, the sales contract was rejected by Non-Indicted 3, and the ownership transfer registration was made in the name of the defendant as to the whole of the said six parcels of real estate was made again. The defendant was involved in the conclusion of the above sales contract, but the above non-Indicted 1 was not present at the time of the conclusion of the contract, and the purchase fund was paid to the seller, and the defendant was paid to the seller at the time of the contract, and although Non-Indicted 1, etc., the title truster, etc. was well known to the defendant, the title truster, etc., but the defendant did not know the fact that the contract was concluded with the seller, and thus, it cannot be seen that there was an agreement between the contracting party to the contract.

D. Nevertheless, the court below held that the Defendant’s act of consuming the remaining purchase price constitutes an embezzlement of the real estate disposal price owned by Nonindicted Party 1 on the premise that the title truster 1 is the actual owner as the purchaser of the instant sales contract. The court below erred by misapprehending the legal principles on the other person’s property as the premise of the judgment of embezzlement and the confirmation of the parties to the sale, and the ground of appeal pointing this out is with merit.

2. On the third ground for appeal

A. The summary of the facts charged of this case is as follows: (a) with the intent of having Nonindicted 4 and 5 criminal punishment, notwithstanding the fact that the Defendant did not have any authority on the sales price of the land in this case, and that Nonindicted 4 and 5’s employees were assaulted and detained by Nonindicted 5, who was delegated by the title truster 1; and (b) with the intent of having the above Nonindicted 4 and 5 criminal punishment, the Defendant embezzled KRW 52 million of the sales price of the land in the custody of Nonindicted 4 received from the buyer Nonindicted 2; and (c) with the aforementioned Nonindicted 4 and Nonindicted 5 jointly committed assault and detained the Defendant who used the purchase price in return for about four weeks treatment, and submitted a false complaint containing false contents to the effect that the said Nonindicted 4 and Nonindicted 5 committed any 4 and Nonindicted 5 did not suffer any harm to the aggregate in fact; and (d) the lower court affirmed the judgment of the first instance court on the grounds that the Defendant did not actually use force during the process of causing Nonindicted 4, etc. to attach the Defendant.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

Since the crime of false accusation is established when the reported fact goes against the objective truth with the intention of having another person subject to criminal punishment or disciplinary disposition, the requirement that the reported fact goes against the objective truth requires positive proof, and the establishment of the crime of false accusation is not recognized by readily concluding the reported fact that goes against the objective truth solely with the passive proof that the authenticity of the reported fact cannot be recognized (see Supreme Court Decision 83Do1401, Jan. 24, 1984). Even though some of the reported matters contain contents contrary to the objective truth, if it is merely an exaggeration of the circumstances of the reported fact, the crime of false accusation is not established (see Supreme Court Decisions 86Do582, Jul. 22, 1986; 96Do771, May 31, 1996).

According to the evidence duly adopted and examined by the first instance court and the lower court: (a) the Defendant was under diagnosis at a hospital after five days have passed since her physical force was exercised; (b) yet, it was not verified at the time when she was under diagnosis at the hospital; (c) however, the Defendant was under diagnosis at another hospital for two days due to the fact that he was under diagnosis at the left-hand frame; (d) the medical records of the hospital in receipt of the above hospitalized treatment include the fact that the Defendant expressed the left-hand damaged part of the Defendant’s body and the fact that the Defendant was under diagnosis at the hospital at the time when she was under diagnosis by submitting a diagnosis report that was under investigation by the complainant; and (e) whether the medical records of the hospital in receipt of the hospital in question contain any false fact that the Defendant was under diagnosis at the time when she was under diagnosis and treatment for the first time since her time since 10 years has passed; and (e) the lower court merely stated that the Defendant was under diagnosis and treatment by the Defendant at the time when she was under diagnosis.

C. Nevertheless, the court below, without taking such measures, concluded that the defendant's complaint constitutes a false accusation as a report of false facts, is erroneous in the misapprehension of legal principles as to the intent of the crime of false accusation and in the misapprehension of the rules of evidence. The grounds for appeal pointing this out are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)